[1] Requirements for an employer’s expression of opinion through a speech, in-house broadcast, etc. to constitute unfair labor practices under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and the method of determining whether an employer has an intent to control or intervene in the organization, operation and activities of a trade union

[2] The case holding that the court below erred in the misapprehension of legal principles in holding that, in case where the Korean Railroad Workers' Union was indicted on charges of obstructing Gap's business by force by force, such as by failing to enter the office building, when Gap, a negotiating member of the employer, arrived at the local office before the scheduled date of strike to hold an explanatory meeting with employees, and the defendants, etc., who are executive members of the labor union, were indicted on charges of obstructing Gap's business by force, such as preventing them from entering the office building

[1] If an employer has an intention to control or intervene in the organization, operation and activities of a trade union by taking into account the situation, time, place, method, influence of the operation or activities of a trade union, along with the contents of the expressed opinion when the employer expresses his/her opinion through a speech, internal broadcast, notice, or letter, etc., if it is acknowledged that the employer has an intention to control or intervene in the organization, operation and activities of a trade union, it does not necessarily require that an unfair labor practice is established as “the act of controlling or intervening in the organization or operation of a trade union,” and that as a result of such control or intervention, it does not necessarily require that an infringement upon the right to organize of a trade union. However, since an employer has the freedom to express his/her own opinion, the employer simply expressed his/her critical opinion on the activities of a trade union or seeks understanding by holding a collective briefing meeting, etc. or explain his/her opinion such as the legitimacy and legitimacy of the strike and the influence of the strike on the company or workers even if it is scheduled to do so, and it does not interfere with the employer’s independence or independence of a trade union.

[2] In a case where the Korea Railroad Workers' Union (hereinafter "Trade Union") arrived at a local vehicle office before the scheduled date of strike with the Korea Railroad Corporation (hereinafter "railroad Corporation") prior to the scheduled date of strike by giving prior notice of strike, and the Defendants, executive officers of a trade union, etc. were prosecuted for interfering with Gap's business by force, such as obstructing them from entering the office building, the case holding that the court below erred in the misapprehension of legal principles and the legal principles as to "the protected legal interest of the crime of interference with business," since Gap did not hold an explanatory meeting on the following grounds: (a) the contents of the statement to be made at a briefing session prior to the briefing session; (b) the contents of the statement made before and after the briefing session; (c) the influence of the statement made at another region's briefing session prior to the briefing session; (d) the legitimacy of the first scheduled strike; and (e) the situation before and after recognizing unfair labor practices such as the operation or activities of a trade union or the involvement in such activities from the employer.

[1] Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act / [2] Articles 30, 314(1) of the Criminal Act, Article 81 subparag. 4, and Article 90 of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 96Nu2057 delivered on May 7, 1997 (Gong1997Sang, 1744) Supreme Court Decision 97Nu8076 delivered on May 22, 1998 (Gong1998Ha, 1777) Supreme Court Decision 2006Do388 delivered on September 8, 2006 (Gong2006Ha, 1703)

Defendant 1 and nine others

Prosecutor

Attorney Park Jong-he et al.

Seoul Western District Court Decision 2011No513 decided November 3, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. On May 11, 2010, the facts charged of the instant case revealed that the Defendants and Co-Defendant 11 jointly arrived at the site to explain the illegality of the scheduled strike on the following day from the culture room on the third floor around 10:40 of the same day for the present employees of the Seoul Motor Vehicle at the parking lot of the Seoul Motor Vehicle Corporation around 10:20 on May 11, 2010, the Defendants and Co-Defendant 1 of the first instance trial interfered with their legitimate duties by force, such as preventing Non-Party 1 from entering the building.

On the other hand, the court below found the defendants not guilty on the ground that the non-indicted 1 made a tour of the site under the Korea Railroad Corporation and held an explanatory meeting against its employees on the ground of the circumstances stated in its holding that it constitutes unfair labor practice and therefore cannot be deemed as the duty under the legal interest of the crime of interference with business. Even if the holding of the explanatory meeting in this case constitutes a duty under the legal interest of the crime of interference with business, the defendants' mistake

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. First, we examine whether the holding of the instant briefing session constitutes a job protected by the law of interference with business.

Where an employer expresses his/her opinion through a speech, in-house broadcast, notice, letter, etc., if it is acknowledged that he/she has an intention to control or intervene in the organization, operation, and activities of a trade union by taking into account the situation, time, place, method, impact on the operation or activities of a trade union, etc. of the expressed opinion along with the contents of the expressed opinion, the unfair labor practice has been established as “the act of controlling or participating in the organization or operation of a trade union by an employee” under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and the establishment of unfair labor practices as a control or intervention does not necessarily require the result of infringing the employee’s right to organize (see Supreme Court Decision 2006Do388, Sept. 8, 200

However, since an employer has the freedom to express his/her own opinion, an employer’s act of expressing a critical opinion on the activities of a trade union or holding a collective briefing session, etc. against an employee to explain and seek understanding of the company’s business situation and policy direction, etc., or an act of explaining the legitimacy and legitimacy of the strike and the impact of the strike on the company or its workers even though the strike is scheduled, as long as the strike does not include a threat of disadvantage, such as disciplinary action, or the promise to provide benefits, or an act of explaining the impact of the strike on the company or its workers, etc., and it is not readily concluded that the employer has an intention to control or intervene in the organization, operation, and activities of a trade union, unless

According to the reasoning of the judgment below and the records, ① the Korea Railroad Corporation has terminated its collective agreement with the labor union of this case on November 24, 2009, the labor union of this case was engaged in strike from November 26 to December 2 of the same year, and ② the labor union of this case continued to negotiate with the Korea Railroad Corporation, but failed to hold negotiations by May 12, 2010, and the Korea Railroad Corporation will resume its business (the scheduled date of the strike is 04:0 on May 12, 2010). ③ If the Korea Railroad Corporation did not start negotiations with its members on the 1st floor to prevent its members from participating in the negotiation of the above 3th floor, it is necessary to hold an explanatory meeting with its members on the 1st place of business from the date of the collective bargaining, etc. to the 1st place of business from May 8, 2010 to the 1st place of business from the date of the dispatch of the above 1st place of business.

In light of the progress of such tour briefing sessions, it is difficult to conclude that Nonindicted Party 1 expressed critical opinions on the strike policies proposed by the labor union from the employer’s standpoint, such as explaining the overall situation of the Korea Railroad Corporation and the impact of strike on the company, and asking for or persuadeing the labor union from the employer’s participation in the strike. However, according to the reasoning of the lower judgment and the record, it is difficult to view that Nonindicted Party 2, at the time of the Defendants’ obstruction of entry and exit, etc., did not appear to have deliberated on the contents of the instant briefing session. If the contents of the instant briefing session do not differ from the contents of the remarks made against the intermediary manager, etc., the lower court did not have any specific deliberation. Furthermore, it is difficult to see that the Defendants were aware that the Defendants did not have any influence on the labor union’s participation in the strike, such as Nonindicted Party 1, etc., at the time of the Defendants’ obstruction of entry and exit. However, it is difficult to see that the Defendants did not have any influence in the process of the Defendants’ participation in the project.

Therefore, the court below should have determined whether the instant briefing session was likely to be controlled by the labor union or to intervene in the labor union's activities in light of the following: even if the instant briefing session was held at an imminent time, the court below should have determined that the instant briefing session does not fall under the legal interests protected by the crime of interference with business because it did not fall under the interests protected by the crime of interference with business because it did not fall under the legal principles as to the establishment of unfair labor practices or the legal interests protected by the crime of interference with business by failing to exhaust all necessary deliberations by misapprehending the legal principles as to the establishment of the crime of interference with business or the protection of legal interests and interests in the crime of interference with business, as the legal principles as to the establishment of the crime of interference with business by the control and outline of the instant briefing session, or as the premise for recognizing the act of interference with business, such as the legitimacy of the first scheduled strike.

B. Next, we examine whether there is a good reason to mislead the misunderstanding of unfair labor practices.

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. Generally, an act of misunderstanding that one's own act constitutes a crime but it is recognized that it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and that an act of misunderstanding that one's own act does not constitute a crime shall not be punishable if there is a justifiable reason for misunderstanding (see, e.g., Supreme Court Decisions 91Do2525, May 22, 1992; 200Do1696, Jan. 25, 2002). Whether there is a justifiable reason should be determined depending on whether the act of misunderstanding was committed with due care and verification of the illegality of the act of misunderstanding that one's own act could have been recognized, and the degree of efforts to recognize illegality should be determined depending on whether the act of misunderstanding was not recognized as a result of the act of misunderstanding.

According to the reasoning of the lower judgment and the record, the Defendants, the executive officers of the instant trade union, determined that “the employer would provide special education with the intent to prevent its members from engaging in the strike,” and could have prevented the Defendants from holding the instant briefing session in the same manner as seen earlier. However, solely based on the circumstances stated in the lower judgment, the Defendants cannot be deemed to have made a serious effort to prevent the Defendants from making any mistake that the instant briefing session constitutes unfair labor practice. Therefore, even if the Defendants were to be mistaken that the instant briefing session constitutes unfair labor practice, it cannot be said that there were justifiable grounds.

Therefore, the lower court erred by misapprehending the legal doctrine on justifiable reasons under Article 16 of the Criminal Act, which determined that the Defendants’ act of blocking the holding of the instant briefing session constitutes a case where there is a justifiable reason to believe that the Defendants’ act was not a crime under the law.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)